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Judge Rules For Plaintiffs Who Sued School Board.

EDITOR’S NOTE: Will the Brevard Public School Board learn from this case? Or continue to deny rulings from around the country on their commenting policies?

The Pennsbury School Board in Bucks County, Pennsylvania has what is known as “Policy 902″ and Policy 922,” which deal with conduct during School Board meetings and conduct during all school events.

Under the policies:

Speakers “must preface their comments by an announcement of their names, address and group affiliation, if applicable.” The Board’s presiding officer may interrupt or terminate comments deemed “too lengthy, personally directed, abusive, obscene, or irrelevant.” The presiding officer may also “[r]equest any individual to leave the meeting when that person does not observe reasonable decorum” and can “[r]equest the assistance of law enforcement officers to remove a disorderly person when that person’s conduct interferes with the orderly progress of the meeting. Similarly, “offensive, obscene or other inappropriate banners or placards, or those that contain personal attacks” are prohibited.

If those policies sound familiar to you, they should as they are very close to the policies that the Brevard Public School Board has adopted.

The Institute for Free Speech represented four men – Douglas Marshall, Simon Campbell, Robert Abrams, and Tim Daly – after they were cut off by several Board presiding officers.

As a side note, the Institute for Free Speech is representing the plaintiffs in the Brevard School Board case as well.

(You can see clips of how that interaction happened in the video above.)

The incidents shown in the video are not the only ones.

The board was also caught selectively editing out plaintiff Douglas Marshall’s criticism of equity policies from the YouTube video posted of their March 18 meeting. An internal email released under Pennsylvania’s “Right to Know” law confirms the motivation for doing so was based on content of speech.

In the email, Cherrissa Gibson, the district’s director of Equity, Diversity and Education, voiced her concerns that the comments were “filled with microaggressions” and included “stereotypical beliefs that are harmful.” She ultimately recommended the board “remove the portion of Mr. Marshall’s public comments that are abusive and irrelevant from the audio recording.”

The board subsequently edited the selected portion of testimony out of the YouTube video, which the lawsuit contends is tantamount to “‘memory [holing]’ speech based on its viewpoint” and “deleting speech from public records as though it was never spoken.” When community members caught on and confronted the board for the selective censorship, they ultimately restored the video to its original form.

Almost sounds like the Brevard School Board’s policy of not recording non-agenda public comments, doesn’t it?

On November 17th, Judge Pratter of the United States District Court for the Eastern District of Pennsylvania issued a preliminary injunction against the Pennsbury School Board preventing it from enforcing its policies in most areas.

MarshallvAmuso_Order_11.17.21

The injunction is based on the idea that the plaintiffs are most likely to succeed at trial based on the facts.

The preliminary injunction was followed by a full court order telling the School Board to stop what they are doing as it is unConstitutional and against the law.

MarshallvAmuso_MPI-memo-order_11.17.21pdf

Note that the order doesn’t address the right of the School Board to keep people on topic, which is as it should be.

This is another win for the rights of people to address public boards without fear of being shut down because the Board and Board members don’t like what is being said or the manner in which it is said.

The case follows a Sixth Circuit Court of Appeals case where the Madison County (Ohio) School Board had a similar commenting policy as to that of the Pennsbury School Board and the Brevard County School Board.

The Madison County policy was given as:

1. prohibit public comments that are frivolous, repetitive, and/or harassing;
2. interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;
3. request any individual to leave the meeting when that person does not observe reasonable decorum; [and]
4. request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting. (emphasis ours)

The policy in Madison County was struck down as being unConstitutional.

We have argued long and hard that the policy on speech as presented by the Brevard County School Board is unConstitutional.

Our voices have fallen on deaf ears at the School Board who, backed by their general counsel, seem to be bent on denying people their First Amendment rights.

The School Board’s stance and policies have netted a lawsuit against the Board.

We have no reason to believe that the outcome of the lawsuit will be any different than those in the two cases presented here.

The Brevard School Board, as in Madison County and Pennsbury County are about to get an education; an education that should have been gotten without people having to sue, and without the School Board telling people their rights don’t apply in School Board meetings.

Unfortunately, the public will be paying for this education as is always the case.

However, the School Board should not only settle the case and get out of it, but also dismiss their counsel who has led them down what we believe to be an erroneous, illegal and unConstitutional path.

It is not only the people of the County who should have to “pay” when Boards break the laws and go against the Constitution.




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